CITATION: National Direct Response Marketing Canada Inc. v. Travel Industry Council of Ontario, 2011 ONSC 6157
COURT FILE NO.: DC-11-29-00
DATE: 20111017
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: NATIONAL DIRECT RESPONSE MARKETING CANADA INC. and GAIL ELLEN TILBROOK
Applicants
v.
TRAVEL INDUSTRY COUNCIL OF ONTARIO
Respondent
BEFORE: HILL J.
COUNSEL: A.E. Bak, for the Applicants
S.S. Karas, for the Respondent
HEARD: October 17, 2011
E N D O R S E M E N T
HILL J.
INTRODUCTION
[1] The applicants seek the following relief:
(1) Leave to have the herein Application heard by a single Judge of the Superior Court sitting as a Judge of the Divisional Court as opposed to a panel of 3 Judges of the Divisional Court due to the urgency of this Application.
(2) An order extending the time for service of this Application for Judicial Review.
(3) An order in the nature of certiorari to quash the decision of the learned Justice of the Peace of December 10, 2010.
(4) An order staying the proceedings as against both Appellants under section 24(1) of the Charter based on violation of section 11(b) of the Charter.
(5) In the alternative, an Order staying the proceedings on the basis that the Appellants are no longer in a position to make full answer and defence to the charges before the Court.
(6) Costs of the Application on a substantial indemnity scale as against the Respondent to be fixed by this Honourable Court in such amount as this Honourable Court may deem just;
(7) Post judgment interest on the costs awarded pursuant to s. 129 of the Courts of Justice Act; and
(8) Such further and other Order as this Honourable Court may deem just.
[2] In addition to pleading that the length of delay to trial has infringed the applicants’ rights under s. 11(b) of the Charter, the applicants’ Notice of Application submits that the court which dismissed its application for a stay of proceedings “erred in law” in various respects in its reasons for failing to conclude that there had been a breach of the s. 11(b) Charter right.
[3] The applicants’ position is that the decision of Justice of the Peace Duggal presiding in the trial court respecting the charges faced by them amounted to a statutory power of decision by an inferior court as defined in the Judicial Review Procedure Act subject to judicial review including on application for an order in the nature of certiorari for error of law on the face of the record pursuant to s. 2 of the Act.
TIMING OF THE APPLICATION – EXTENSION OF TIME
[4] The decision of Justice of the Peace Duggal, presiding as a trial judge, was rendered on December 10, 2010.
[5] The Notice of Application by National Direct Response Marketing Canada Inc. and Gail Tilbrook for judicial review of that decision by the Divisional Court is dated April 20, 2011, about 4 ½ months after the Justice of the Peace declined to find a breach of the applicants’ s. 11(b) Charter right and in turn refused a stay of proceedings and set a date for trial of the merits of the charges. Despite a Notice of Application pleading for an “order extending the time for service of this Application for Judicial Review”, there is no affidavit material before the court adequately explaining either the delay in serving and filing the Notice of Application or the reason why the application has been scheduled for argument a half a year later and only 18 court days before the scheduled trial date of November 9, 2011.
[6] Although over time there have been several formulations of the test for an extension of time for filing a notice initiating proceedings, the articulation in Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67, at para. 5 is representative:
(1) Has the appellant maintained a firm intention to appeal within the relevant time period?
(2) Has the appellant provided a reasonable explanation for the delay in perfecting the appeal?
(3) Is there prejudice to the respondent in granting the extension?
(4) Is there so little merit in the proposed appeal that the court could reasonably deny the appellant this important right?
(5) Does the “justice of the case” require the granting of an extension?
[7] The applicants filed a Notice of Appeal under s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (P.O.A.) from the December 10, 2010 decision of Justice of the Peace Duggal within the time period for filing an appeal. However, no interlocutory appeal is available pursuant to s. 116 of rulings in an ongoing provincial offences trial. Despite this, the applicants demonstrated an intention in a timely way to review the December 10, 2010 decision. The delay to April 2011 to correct the error to a different type of review and the delay in perfection of the application are less well explained.
[8] In addition, according to Mr. Bak’s oral submissions, the delay in perfecting the current application (application record filed October 5, 2011) is said to have been in large measure driven by the delay in receiving transcripts from various court reporters relating to transcript orders placed after December 10, 2010. The proceedings dates of the sought-after transcripts, with the exception of the December 10, 2010 date, all preceded the ss. 11(b)/24(1) Charter application before the trial judge on December 10, 2010. The argument before the justice of the peace proceeded largely by reference to the information entries and other documentation. The transcripts ordered after the court’s decision were material to the s. 11(b) issue and ought to have been before the trial court: see R. v. Hill (1996), 36 C.R.R. (2d) 119 (Ont. C.A.), at p. 121; R. v. Franklin (1991), 66 C.C.C. (3d) 114 (Ont. C.A.), at pp. 121-2.
[9] It cannot be said whether Justice of the Peace Duggal’s decision would have been different had he had access to a complete record of the history of the matter. That said, the interests of justice are not served by extending time to serve an application for review of a decision in circumstances of delay occasioned by acquisition of a more complete record unavailable to the initial decision-maker in the absence of evidence that the transcripts could not have been obtained with due diligence. Here, a deliberate decision was made to proceed without the late-ordered transcripts and, apart from the irony of unjustifiable delay in the context of asserted s. 11(b) concerns, the delay does not support the grant of an extension of time.
THE APPROPRIATENESS OF JUDICIAL REVIEW
[10] Rights guaranteed by s. 11 of the Charter are “available to persons prosecuted by the state for public offences involving punitive sanctions, i.e. criminal, quasi-criminal, and regulatory offences”...“proceedings which may attract penal consequences even if not criminal in the strict sense”: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R., at para. 65; Martineau v. M.N.R., 2004 SCC 81, [2004] 3 S.C.R. 737, at para. 19. Because “prosecutions of quasi-criminal offences under provincial legislation” are matters of “a public nature, intended to promote public order and welfare within a public sphere of activity” they attract s. 11 Charter scrutiny unlike proceedings of a non-penal administrative nature: Martineau, at paras. 21-3.
[11] The applicants were charged in an information laid under Part III of the Provincial Offences Act. Charges under provincial statutes are prosecuted by provincial offences officers and other specifically designated prosecutors.
[12] “Judicial review is directed at the legality, reasonableness and fairness of the procedures employed and actions taken by government decision makers”...”[t]he focus of judicial review is to quash invalid government decisions”: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 24, 26. Judicial review under Ontario legislation is of course appropriate as well for review of inferior court decisions of an administrative quality in the sense of being non-penal in nature.
[13] The alleged breach of s. 3(1) of the Travel Industry Act, R.S.O. 1990, c. T.19 if established, is an offence contrary to s. 25(1)(c) of the statute punishable by a maximum $25,000 fine or one years’ imprisonment or both. The alleged violation of s. 2(1)(viii) of the Business Practices Act, R.S.O. 1990, c. B. 18, if proven, is an offence contrary to s. 17(2) of that Act carrying the identical penalty. Accordingly, the outstanding charges are of a quasi-criminal nature with penal consequences, not matters of administrative decision-making. The trial proceeding before the Provincial Court is not the exercise of non-penal authority by an inferior court such as might be the case in a decision relating to forfeiture or a fine without penal consequences for non-payment.
[14] Issues, including those with a constitutional dimension, which arise in the context of a criminal prosecution should be resolved within the confines of established criminal process: R. v. Johnson (1991), 3 O.R. (3d) 49 (C.A.), at para. 7. The same may be said of quasi-criminal or regulatory matters. In R. v. 1353837 Ont. Inc. (2005), 74 O.R. (3d) 401 (C.A.), the appropriate review mechanism for review of a court’s decision in the trial of quasi-criminal matters, where an immediate appeal was unavailable under s. 116 of the P.O.A., was through the vehicle of certiorari pursuant to s. 141 of the P.O.A.
[15] The applicants do not claim jurisdictional error but rather error of law on the face of the record. Under s. 141 of the P.O.A., certiorari review is, however, properly limited to jurisdictional error alone. While there is some supporting authority to the contrary, I believe the suggestion that s. 141(4) of the P.O.A. enlarges the scope of certiorari review beyond jurisdiction to error of law to be misplaced. Subsection 141(4), not unlike the reason for the enactment of s. 686(1)(b)(iv) of the Criminal Code, is not a review enhancing mechanism but rather a limiting one to ensure that only jurisdictional error resulting in a substantial wrong or miscarriage of justice will invalidate a decision.
[16] Ordinarily the scope of review contemplated by a certiorari application by a defendant charged with an offence requires a demonstration of jurisdictional error: R. v. N.S., 2010 ONCA 670, at para. 23 (leave to appeal granted, [2010] S.C.C.A. No. 494); 1353837 Ontario Inc., at paras. 13, 18; Branco v. American Home Assurance Company, 2011 SKCA 79, at paras. 8-9.
[17] In instances of a third party other than the Crown or the defendant, “extraordinary remedy relief will lie on the more traditional grounds of both jurisdictional error and error of law on the face of the record”: N.S., at paras. 23-4; R. v. Cunningham (2010), 2010 SCC 10, 254 C.C.C. (3d) 1 (S.C.C.), at paras. 57-8.
[18] The P.O.A. has a comprehensive code relating to review/appeal of decisions in proceedings of a quasi-criminal nature. Strong policy reasons underlie the restriction of certiorari review to issues of a jurisdictional character. To quote Kourtessis v. Canada (Minister of National Revenue), [1993] 2 S.C.R. 53, at para. 32, “[t]he admixture of...civil procedure with criminal procedure could...result in an unpredictable mish-mash”.
[19] “Jurisdiction has to do with the authority to decide an issue or perform a duty, not the nature or correctness of the decision made”: R. v. Vasarhelyi, 2011 ONCA 397, at para. 52. In other words, there is a distinction between jurisdictional error reviewable by prerogative relief “rather than error within jurisdiction” which is not: 1353837 Ont. Inc., at paras. 13, 18; Ontario (Ministry of Labour) v. Intracorp Developments (Lombard) Inc., [2002] O.J. No. 1209 (S.C.J.), at para. 23; Ontario (Ministry of Labour) v. Ivaco Inc. (2001), 53 O.R. (3d) 675 (C.A.), at paras. 9-13.
[20] Certiorari is not available as of right - the court’s jurisdiction to grant certiorari relief is discretionary: Johnson at para. 6; Re Corbeil and the Queen (1986), 27 C.C.C. (3d) 245 (Ont. C.A.), at p. 251; 1353837 Ont. Inc., at paras. 19, 20, 22.
[21] “Section 11(b) is designed to protect an accused from the prejudice that flows from unreasonable delay in being tried on criminal or quasi-criminal charges”: R. v. Kporwodu (2005), 75 O.R. (3d) 190 (C.A.), at para. 162. “[W]here the inferior court is a court of competent jurisdiction to try the case, there is no automatic loss of jurisdiction by that court in ruling adversely to the accused on a Charter issue unless the ruling is manifestly and palpably wrong” and accordingly, “only in special and exceptional circumstances can it be said that the denial of a constitutional right has resulted in a loss of jurisdiction so as to justify the extraordinary remedies of certiorari and prohibition”: Corbeil, at p. 254; R. v. Arcand (2004), 73 O.R. (3d) 758 (C.A.), at paras. 15, 18-9, 21.
[22] Society has an interest in the expeditious conduct of criminal and quasi-criminal proceedings without interruption or delay: Johnson, at para. 8; R. v. MacIntosh, 2008 NSCA 73, at para. 22. As well, fragmentation of the trial process and the risk of determination upon an incomplete record favour avoidance of interlocutory review: Johnson, at para. 8. Accordingly, there is well-entrenched judicial reticence to the interruption of ongoing trial proceedings for interlocutory review by extraordinary remedies/prerogative writs in quasi-criminal matters preferring to leave review to an appeal of the trial verdict assuming the defendant were not to be acquitted: R. v. Multitech Warehouse Direct (Ontario) Inc. (1989), 52 C.C.C. (3d) 175 (Ont. C.A.), at pp. 178-183 (leave to appeal refused, [1990] S.C.C.A. No. 14).
[23] It may be that where “the interests of justice require immediate intervention” (Johnson, at para. 9), or “special circumstances” are extant such as a “palpable” or “clearly threatened” Charter violation, that the non-interventionalist policy will yield: Johnson, at paras. 9, 12-7. Accordingly, it has been observed that “applications for certiorari under the P.O.A. should be granted only rarely”: 1353837 Ont. Inc., at paras. 18, 24.
[24] While a corporation charged with breach of a provincial statute may assert a s. 11(b) Charter right (R. v. CIP Inc., [1992] 1 S.C.R. 843, at paras. 33, 38), “the only interest engaged under s. 11(b) is the right to a fair trial” for a corporate defendant in the sense of prejudice is impairment of the defendant’s ability to make full answer and defence: R. v. National Steel Car Ltd. (2003), 63 O.R. (3d) 693 (C.A.), at paras. 10-11. Depending on the circumstances, a missing witness may, or may not, afford evidence of actual prejudice: R. v. Pioneer Construction Inc. (2006), 790 (3d) 641 (C.A.), at para. 24. It may be that during the course of trial of both the personal and corporate defendants that prejudice to full answer and defence will vest which can then be demonstrably linked to unconstitutional delay.
[25] While I agree with Mr. Bak that the number of years the charges have been before the courts appears on its face to be excessive, and while I am not unsympathetic to some of counsel’s arguments respecting error of law in the decision of December 10, 2010, it cannot be said that jurisdictional error has been committed.
[26] The applicants have the right in the pending trial, where properly founded, to renew their s. 11(b) Charter concerns during the trial on an enhanced record with leave or on the basis of material circumstances post-dating the December 10, 2010 decision. Should a finding of guilt be made at trial, the applicants have a right of appeal pursuant to s. 116 of the P.O.A. affording an opportunity for appellate review of any and all s. 11(b)/24(1) rulings.
[27] In summary, on the record here, the interests of justice do not support an extension of time for a review hearing on the merits. Judicial review with certiorari for error of law on the face of the record is not available for interlocutory review of a pre-trial ruling in a quasi-criminal matter. While certiorari for jurisdictional error pursuant to s. 141 of the P.O.A. was not sought, it would not have been appropriate in the exercise of the court’s discretion considering delay to perfection of the current application, the attempt without satisfactory explanation to place an enhanced record before this court beyond that available to the decision-maker, the lack of identified jurisdictional error, and the short time to trial on the merits.
CONCLUSION
[28] The application is dismissed. The Respondent did not seek costs. No costs are ordered.
HILL J.
Released: October 17, 2011
CITATION: National Direct Response Marketing Canada Inc. v. Travel Industry Council of Ontario, 2011 ONSC 6157
COURT FILE NO.: DC-11-29-00
DATE: 20111017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
NATIONAL DIRECT RESPONSE MARKETING CANADA INC. and GAIL ELLEN TILBROOK
Applicants
v.
TRAVEL INDUSTRY COUNCIL OF ONTARIO
Respondent
ENDORSEMENT
HILL J.
Released: October 17, 2011